CM, R (on the application of) v The Independent Review Panel of PQR Academy Trust [2025] EWHC 1414 (Admin)

[2025] EWHC 1414 (Admin)Case No AC-2023-LON-002988
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 9 June 2025
Before
RORY DUNLOP KC
Between
THE KING (on the application of CM, by her grandmother and litigation friend, CY)ClaimantTHE INDEPENDENT REVIEW PANEL OF PQR ACADEMY TRUSTDefendantPQR ACADEMY TRUST (1)A LOCAL AUTHORITY (2)Interested Parties
Ollie Persey (instructed by Sinclairs Law) for ClaimantBen Mitchell (instructed by Stone King LLP) for First Interested PartyHearing Hearing dates: 8 May 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on [9 June] by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................Rory Dunlop KC, sitting as a Deputy High Court Judge:

Introduction and Preliminary Matters

[1]This is a claim for judicial review by the Claimant of a decision by an Independent Review Panel (“the IRP”), dated 12 July 2023, upholding the decision of the Governors of an academy (“the Academy”) to exclude the Claimant permanently from the Academy. The Academy is run by the First Interested Party (“the Trust”). The IRP takes no part in the claim but the claim is defended by the Trust. In the hearing before me Mr Persey appeared for the Claimant and Mr Mitchell appeared for the Trust. I am grateful to each of them for their clear and helpful submissions.[2]An anonymity order was made by Mr Southey KC, when granting permission. I am satisfied that order should be maintained. I recognise that there is a strong public interest in parties to proceedings being named. That is one element of the fundamental principle of open justice. However, I agree with Mr Southey KC that this is a case where an anonymity order is appropriate. The Claimant is a child. This judgment necessarily refers to her vulnerabilities and some highly sensitive matters relating to her personal and family life. There might be significant harm to her if no anonymity order were in place. In order to prevent jigsaw identification of the Claimant, I have avoided naming the Academy, the IRP, the Trust and staff employed by the Trust.[3]There was a preliminary issue for me to resolve – i.e. whether to admit the second witness statement of the Claimant’s grandmother. Mr Mitchell objected to its admission as it was filed after the deadline for evidence and relates to matters post-dating the IRP’s decision, which are irrelevant. I asked him if the Academy claims to have been prejudiced by the lateness of the evidence. Very properly, he said he had no instructions to make such a submission. I announced at the hearing that I would read the statement de bene esse and so I have. I now admit it. Case management directions should be adhered to. However, my primary concern is to have as full an evidential picture as possible. I can ignore elements of this statement which are irrelevant as they post-date the decision under challenge. In the absence of any evidence (or even submission) that any party will be prejudiced I am willing to admit this statement.

Factual Background up to the IRP decision

[4]I have taken the facts from the statements of the Claimant and her grandmother, the judgment of the First-tier Tribunal (“FtT”) in separate proceedings between the Claimant and the Trust, and the agreed chronology. The judgment of the FtT was not appealed. There are some, relatively minor, inconsistencies between the facts recorded by the FtT and the evidence of the Claimant’s grandmother. I have not found it necessary to resolve who is correct, where there are inconsistencies, because they are minor and could not affect my conclusion in this case.[5]The Claimant was born in 2009. Her litigation friend is her grandmother, with whom she has lived under a Special Guardianship order since 2011. The Claimant was separated from her biological parents at birth,and lived with foster carers before living with her grandmother. The Claimant began her primary education at one primary school and moved to a different primary school in Year 6.[6]The Claimant was due to transition to the Academy, a mainstream secondary academy, in September 2021. She had not been identified by her primary school as requiring an enhanced transition process. Staff at her primary school made the Academy aware that the Claimant was previously a Looked After Child (‘LAC’), and had experienced a period in care, but had made it clear that she had not been placed on the school’s Special Educational Needs (“SEN”) register as a result of any previous attachment needs.[7]During November and December 2021, the Claimant began to receive an increasing number of “serious breach” sanctions for refusing to follow teachers’ instructions, and rudeness towards staff. She also received warnings for failing to attend detentions.[8]In December 2021, because of concerns about the Claimant’s continued absences from lessons and her limited engagement with her learning, the Academy developed a support plan, which would include reduced attendance at school, online learning, and additional mentoring from two members of staff working within the school’s Inclusion Team.[9]During the Christmas holidays in December 2021, the Claimant informed staff that she had been sexually assaulted by an older male student at the Academy outside school. This appears not to have been taken further because the Claimant did not want to go to the police as she was scared to go to court. The Claimant returned to the Academy in January 2022.[10]On 8 February 2022, the Claimant received a 3-day fixed term exclusion for “persistent disruptive behaviour” which included persistently truanting lessons, defiance, repeatedly not following instructions, and consistently missing detentions. The letter confirming the Claimant’s fixed term exclusion noted that the Claimant had been involved in 145 behaviour incidents, 62 of which had been classed as a “serious breach” of the school’s behaviour policy.[11]On 23rd February, the Academy agreed to arrange an Educational Psychologist assessment for the Claimant.[12]On 9th March 2022, the Claimant was made the subject of a Child Protection Plan, under the category of emotional harm. The Child Protection Plan recorded that all the professionals believed that the Claimant’s grandmother was ‘absolutely committed to caring for’ the Claimant. However, they said the following:
“Police, school, Health and Social care are worried that [the Claimant] and [her sister] have gone missing and [the Claimant] has also made an allegation of rape. If the children, especially [the Claimant], continue to go missing they will become at risk of Child Sexual Exploitation, other forms of exploitation and possible gang affiliation. There is also a worry that despite [the Claimant’s grandmother’s] commitment and best intentions, the placement could break down and the children may come into the care of the local authority. There are concerns about behaviours in school which increases the risk of permanent exclusion. If this continues, [the Claimant’s] and [her sister’s] education will be disrupted, therefore they will not engage in learning to ensure stimulate so [text missing] achieve and have good outcomes in their adult lives. This also means that they are likely not to have formal qualifications to meet their basic needs as adults and fulfil their best potential.”
[13]On 15th March 2022 the Claimant’s grandmother requested the local authority (“LA”) to carry out a statutory assessment of the Claimant’s needs. On 18th March 2022 a further meeting took place, which was attended by staff from the Academy and the Claimant’s grandmother, as well as representatives from the LA’s Inclusion and SEN Teams, and the Claimant’s social worker. The Deputy Headteacher of the Academy said that the Claimant’s behaviour meant that she could not be in the classroom, and so it would not be possible to complete assessments with her at the Academy. Attendees discussed the possibility of a managed move to a sister school to the Academy, in order to allow assessments to be completed, and help determine whether it would be appropriate to ask the LA to issue an Education, Health and Care plan (“EHCP”) for the Claimant.[14]On 30 March 2022, the Claimant began attending the Academy’s sister school. In April 2022 the Academy contracted someone (“Ms R”) to work with a number of students, including the Claimant. Ms R saw the Claimant on a daily basis for ‘check-ins’. Despite this support, the Claimant’s behaviour continued to be problematic, and on 10 May 2022, she received a 1-day fixed term exclusion for a series of events including refusal to attend detention.[15]At the end of May 2022, the Claimant’s managed move placement at the sister school broke down, and she returned to the Academy. She continued to have daily check-ins with a particular Family Liaison Worker, or with another member of the Inclusion Team if he was not available. She also continued to see Ms R on a weekly basis for 1 hour. Despite this, the Claimant continued to receive a large number of sanctions for her behaviour during June and July 2022, with incidents occurring on a daily basis throughout June.[16]Dr X, Educational Psychologist, met with the Claimant on 4 May and 16 June, as well as school staff from the Academy and the sister school on 4 May. Dr X subsequently produced a final report dated 8 July 2022. In that report, Dr X said that the Claimant presented with SEN and was likely to require additional support in relation to cognition and learning and social, mental and environmental health. Dr X said that the Claimant would require specialist ‘trauma-informed support’. Dr X referred to the Child Protection Plan of March 2022 and said ‘There have not been any major incidents of them [i.e. the Claimant and her sister] going missing recently.” Dr X noted that the Claimant had a history of breaking curfew without informing her caregiver and ‘appeared impressionable and may be draw to what her peers are doing, even if they are inappropriate’. Dr X then mentioned a new boyfriend who ‘has his own issues and… may not always be a positive influence’ and said there were concerns about the Claimant starting to engage in sexual behaviours. Under recommendations, Dr X said that the Claimant should have “stability and certainty in her school provision. There should be a clear message to her about where she belongs and who is there for her”.[17]On 11 July 2022, the Claimant was disruptive during an English assessment, and repeatedly failed to follow staff instructions following this incident. She subsequently received a 1-day fixed term exclusion for: “refusal to follow instructions”, which was confirmed in a letter dated 12th July.[18]In mid-September 2022, the Academy employed Mr T, an experienced LSA, to work full-time on a 1:1 basis with the Claimant. The school also made a referral for an ADHD assessment, and a referral to a Speech and Language Therapist in order to be able to provide support for the Claimant’s emotional literacy needs. The school also proposed that the Claimant would start small group sessions with Ms F (SEND Teacher) which would be increased if successful.[19]Despite this additional support, and the presence of Mr T, the Claimant received a further fixed term suspension on 30 September. This suspension followed an incident on 27 September 2022 when the Claimant was due to be working outside the classroom with Mr T but had entered the classroom and been rude to Ms B, the teacher who was in charge of a lesson. The Claimant refused to follow instructions to leave the classroom, and at one point, attempted to push the teacher out of the room by pushing the door into her. Two days later, on 29 September, the Claimant was disruptive during another lesson and refused to follow the teacher’s instructions to leave the classroom. Two additional members of staff had become involved to try and remove the Claimant from the classroom, but they were unable to do so, and the rest of the class eventually had to be moved to the neighbouring classroom to allow staff to deal with the Claimant. Immediately following this incident, the Claimant was absent from her own lesson, having walked away from the LSA who was supporting her that day. She tried to enter a classroom where Ms B was teaching, repeatedly refused to leave the classroom after being asked to do so by Ms B. The Claimant did eventually leave, although she shouted at Ms B as she left, telling her:
“You’re an idiot. you don’t know what you’re talking about. You need to sort yourself out”
. Following this incident, Ms B requested help from another member of staff, and was so upset that she was initially unable to fully explain what had happened. As a result of all these incidents, the Claimant was suspended for: “extreme non-compliance, verbal and physical threatening behaviour towards an adult”.[20]On 4 November 2022, an EHCP co-production meeting took place, attended by the LA’s SEND team as well as social care, the Academy, Coram and the Claimant’s grandmother. During this meeting, the Academy said they would be able to provide trauma-informed training for staff and that they would put in the support the Claimant needed so she could stay at the Academy.[21]On 7 November 2022 the Claimant received a further suspension. Following this suspension, the Claimant did not return to the Academy.[22]On 9 November 2022, the Claimant’s child protection plan was continued following a review meeting due to there being a lack of clarity about the Claimant’s education, which was not only preventing her from progressing, but was also causing her significant distress.[23]On 17 November 2022, the Academy wrote to the LA stating that it could not meet the Claimant’s needs and should not be named as the placement in her EHCP at Section I.[24]On 28 November 2022 the Claimant was referred to ‘alternative provision’, i.e. a non-mainstream school, which I shall call AA. At AA, the Claimant was the youngest and only female student.[25]In early February 2023, the Claimant was suspended for 3 days from AA for persistent bullying and instigating behaviour, and disregard of and rudeness to the Principal.[26]On 6 February 2023 the EHCP was finalised.[27]On 23 February 2023 the Claimant was subject to a further suspension of three days for “failure to follow the behaviour policy”.[28]On 2 March 2023, the Principal of AA terminated the Claimant’s placement with immediate effect for persistent bullying, bringing the school into disrepute, persistent breaches of safeguarding, and failure to adhere to AA’s behaviour policy, including a refusal to sit detentions, persistent defiance, and graffiti.[29]On 17 March 2023, the Academy wrote to the Claimant’s grandmother to confirm the Claimant’s permanent exclusion from the school, for “persistent breaches of the behaviour policy throughout Years 7 and 8”.[30]On 24 March 2023 the FtT held a hearing in relation to claims that the Academy’s decisions to suspend the Claimant, on 10 May 2022, 12 July 2022, 30 September 2022, were unlawfully discriminatory. The FtT received evidence from various sources including the Claimant’s social worker who said:
“[The Claimant] remains on a Child Protection Plan due to continued concerns about a lack of consistent or stable access to education, as well as the risk that she and her sibling… may come to harm in the community - for instance, by being criminally or sexually exploited or groomed by their peers or young adults - due to peer associations and periodic episodes of being absent or missing. …. Reduced participation in education puts [the Claimant] at an even greater risk of coming to harm in the community, particularly during times where [the Claimant] has not been in school, but also if [the Claimant] has not experienced a school environment which is emotionally containing of, or attentive to, her needs…”
[31]The Claimant’s grandmother has given uncontroverted evidence that, in March 2023, a video of the Claimant was circulated on social media, showing the Claimant being sexually assaulted by a male student at AA. Apparently, the video was taken by another student at AA. The Claimant would have been 12 at the time. The Academy knew of the incident and arranged for a police officer to visit the Claimant’s house. At the time of the grandmother’s first statement the police were still investigating this incident. However, I am now told that the police investigation concluded as the Claimant was too distressed to provide evidence in relation to it.[32]On 20 April 2023, the Governing Body heard the Claimant’s appeal against the decision to exclude her permanently from the Academy.[33]In a decision dated 25 April 2023 the Governing Body upheld the Headteacher’s decision to permanently exclude the Claimant. The Claimant’s grandmother applied to the IRP for a review of this decision.[34]In a decision promulgated on 26 April 2023 the FtT rejected the discrimination claims brought on the Claimant’s behalf. They accepted that the Claimant was disabled, by reason of her difficulties in regulating her emotions. They found that there was a causal connection between some of the behaviours and that disability. However, they found that the fixed term exclusions, which were challenged in the proceedings before them, were proportionate means of achieving a legitimate aim. They expressed the view that the incidents involving Ms B were ‘extremely serious, involved defiance as well as disrespectful and physically/verbally challenging behaviour’. They had resulted in an experienced teacher becoming so distressed she was unable to continue in her work or even explain to a colleague what had happened. They were not persuaded that it would have been possible to implement additional provision to prevent the second incident with Ms B from occurring. The FtT said they had considerable sympathies for the challenges which the Claimant faces as a result of her social, emotional and mental health needs, but some of the incidents were ‘very serious and involved challenging and threatening behaviour towards staff and significant disruption to other students’ learning.’ They concluded that the Academy had appropriately considered the Claimant’s needs in the decisions they made, and that their responses in excluding her were proportionate in the circumstances.

The IRP decision

[35]On 3 July 2023 the IRP held a hearing to review the Governing Body’s decision. At some stage before that, the Claimant’s grandmother had obtained pro bono representation from Josephine Fathers (a second six pupil at the time) and Mr Persey. Ms Fathers provided the IRP with written submissions, dated 30 June 2023, which raised five grounds of challenge:(1) Misapplication of the legal test for a permanent exclusion, including unlawful reliance on the LA’s failure to provide alternative provision;(2) Failure to identify that the permanent exclusion constituted disability discrimination;(3) Misapplication of the Public Sector Equality Duty;(4) The Governing Body has failed to provide adequate reasons for its decision;(5) The decision in all the circumstances was irrational. No mention was made, in those submissions, of Article 4 ECHR or modern slavery or trafficking or a risk of being drawn into county lines drug gangs.[36]At the hearing before the IRP, the Claimant was represented by Mr Persey, who appeared on her behalf in this court. The hearing involved the questioning of witnesses, including the Headmaster of the Academy. There is no transcript of the hearing. The IRP records the following questioning of the Headmaster:
“The Barrister questioned the Headteacher that when considering to permanently exclude her jurisdiction is not just simply limited to disability, but consideration of the Modern Slavery Act should also be considered and had she done that. The Headteacher acknowledged that had not been a factor in her decision.”
[37]The IRP recorded Mr Persey as having made the following submission:
“Under the Modern slavery Act the social worker report shows that [the Claimant] was at risk because a serious incident that had occurred and even more so when a Child Protection order had been placed on [the Claimant] as she was at risk of criminal exploitation. The fall out of the permanent exclusion now means that [the Claimant] is no longer at school any more and this serious failure is as a result of not being able to identify this risk because of inappropriate risk assessment.”
[38]In a decision dated 12 July 2023 the IRP rejected the Claimant’s review and upheld the Governing Body’s decision. Under a section headed ‘The Decision’, the IRP addressed various subheadings. Subheading 7.2 was ‘Irrationality: Did the governing board rely on irrelevant points, fail to take account of all relevant points, or make a decision so unreasonable that no governing board acting reasonably in such circumstances could have made?’ Under this subheading, the IRP said the following:
“The IRP discussed whether it was reasonable to permanently exclude whilst the [LA] tried to find the most appropriate placement for [the Claimant]. The IRP felt it was appropriate that the [LA] should be given time and the opportunity to find the best educational provision before making a decision to permanently exclude. The IRP concluded that the decision to permanently exclude was therefore made in a reasonable time. The IRP found the decision was reasonable and appropriate support had been put in place, but the management of support lacked documentation and consultation with the family. The IRP did find that [the Claimant] should have been on the SEND Register considerably sooner, there seemed to be a delay in making relevant referrals for assessment particularly as the school in their oral submission confirmed their main concern was SEMH. Given that the referrals should have been made earlier, IRP were critical that the school’s concerns around SEND had not been addressed earlier. The IRP discussed the modern slavery concern at length and noted that GDC did question the placement at [AA] and the fact that [the Claimant] was the only girl. Whilst having sympathy with the family that this exacerbated the situation with [the Claimant], it was clear that an appropriate and managed risk assessment had been completed. Family representative questioned the disruptive effect on [the Claimant] of the numerous placements and off site provision. The IRP was sympathetic that this was not being helpful to [the Claimant] education, however, it was clear the school had offered at least two therapeutical settings that had been refused by the parent. IRP found the school acted in [the Claimant’s] best interests.”

This claim

[39]On 10 October 2023 the Claimant filed this claim for judicial review. There were four grounds for judicial review:(1) ‘misapplying the test for permanent exclusion…’;(2) ‘irrationally and/or unreasonably concluded that the Claimant was permanently excluded solely “in response” to “persistent breaches” of the … behaviour policy’;(3) ‘unlawfully and/or irrationally and/or unreasonably concluding that permanent exclusion was proportionate and a measure of last resort’; and(4) ‘misapplication of the duties under Article 4 ECHR and the Modern Slavery Act 2015.’[40]Under Ground 4 the Claimant submitted that the Defendant made an error of law ‘in concluding that the [Trust] complied with its duties under Article 4 ECHR… when it permanently excluded the Claimant and was not in breach of them’. The Claimant submitted that the Trust had ‘breached its protection duties by permanently excluding the Claimant.’[41]On 13 May 2024 Hugh Southey KC granted permission on grounds (3) and (4) and refused permission on grounds (1) and (2). He said:
“I am concerned as to whether grounds 3 and 4 reflect the manner in which matters were argued before the Defendant. If they did not, that may mean that these grounds lack merit. I am also uncertain about the scope of the duties in relation to grounds 3 and 4. However, bearing in mind the low threshold for a grant of permission, I cannot dismiss these grounds as unarguable.”
[42]Although the Claimant applied to renew the other grounds, that application has not been pursued. As a result, this matter came before me as a substantive rather than a rolled-up hearing. Mr Persey helpfully clarified, at the oral hearing, that ground 4 was the only live ground and ground 3 added nothing.

The Statutory Framework and Guidance in relation to permanent Exclusion

[43]Section 51A(1) of the Education Act 2002 (“the EA”) gives headteachers the power to exclude a pupil for a fixed term or permanently. This is applicable to an academy by virtue of reg.21 School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012 (“the 2012 Regs”).[44]The Department for Education has published statutory guidance, entitled ‘Suspension and Permanent Exclusion from maintained schools, academies and pupil referral units in England, including pupil movement’ (“the Guidance”). The version of the Guidance in force at the material time (September 2022) provided as follows:
“11. A permanent exclusion is when a pupil is no longer allowed to attend a school (unless the pupil is reinstated). The decision to exclude a pupil permanently should only be taken: • in response to a serious breach or persistent breaches of the school's behaviour policy; and • where allowing the pupil to remain in school would seriously harm the education or welfare of the pupils or staff in the school.”
[45]The Guidance also said the following:
‘For the vast majority of pupils, suspensions and permanent exclusions may not be necessary, as other strategies can manage behaviour. However, if approaches towards behaviour management have been exhausted, then suspensions and permanent exclusions will sometimes be necessary as a last resort. This is to ensure that other pupils and teaching staff are protected from disruption and can learn in safe, calm, and supportive environments. … For the majority of children who have a social worker, this is due to known safeguarding risks at home or in the community: over half are in need due to abuse or neglect. For children with a social worker, education is an important protective factor, providing a safe space for children to access support, be visible to professionals and realise their potential. When children are not in school, they miss the protection and opportunities it can provide, and become more vulnerable to harm. However, headteachers should balance this important reality with the need to ensure calm and safe environments for all pupils and staff, so should devise strategies that take both of these aspects into account.’
[46]If an appeal is made challenging the permanent exclusion, a Governing Bodycommittee conducts a hearing to determine whether to reinstate an excluded pupil (see section 51A(3)(b) of the EA and Regulation 24 of the 2012 Regs).[47]The IRP has a power to review the lawfulness of the Governing Body’sdecision – see 51A(3)(c) of the EA and Regulation 25 of the 2012 Regs.[48]In respect of the functions of the IRP, section 51A(4) of the EA provides that:
“the review panel may— (a) uphold the decision of the responsible body, (b) recommend that the responsible body reconsiders the matter, or (c) if it considers that the decision of the responsible body was flawed when considered in the light of the principles applicable on an application for judicial review, quash the decision of the responsible body and direct the responsible body to reconsider the matter.”
[49]Regulation 25(4) of the 2012 Regs provides:
“In exercising its functions under these Regulations, the review panel must consider the interests and circumstances of the excluded pupil, including the circumstances in which the pupil was excluded, and have regard to the interests of other pupils and persons working at the school (including persons working at the school voluntarily).”
[50]Para. 12 of Sch. 1 to the 2012 Regs provides:
“(2) A review panel must consider written or oral representations made to it by the persons in sub-paragraph (1) when determining a review.”

Article 4 ECHR

[51]Article 4 ECHR provides:
“Prohibition of slavery and forced labour 1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour…”
[52]Public authorities must act compatibly with the ECHR rights: s.6(1) Human Rights Act 1998.[53]The Court of Appeal in R(TDT) v SSHD [2018] EWCA Civ 1395 at [17] identified three positive obligations on the state arising out of Article 4: i) a general duty to implement measures to combat trafficking – the ‘systems duty’; ii) a duty to take steps to protect individual victims of trafficking – ‘the protection duty’ (sometimes called ‘the operational duty’); iii) a duty to investigate situations of potential trafficking – ‘the investigation duty’ (sometimes called ‘the procedural duty’).

The Parties’ Submissions

[54]The only live ground before me was Ground 4.[55]In the statement of facts and grounds Ground 4 was, in essence, that the Academy had breached the Article 4 protective obligation by permanently excluding the Claimant and the IRP had erred by finding otherwise.[56]The approach to Ground 4 in the Claimant’s skeleton argument and oral submissions was somewhat different. Mr Persey was very clear that he was not asking this court to find that there had been a breach of the Article 4 protective obligation. On the contrary, he submitted that it would be inappropriate for me to rule on whether the Article 4 protective obligation had been breached. Instead, he submitted that it was sufficient that there was a ‘prima facie’ case that an Article 4 protective obligation arose. That, he said, triggered an obligation on the part of the IRP to consider Article 4. He argued that the IRP was better placed than me, to rule on whether an Article 4 positive obligation arose, because it has an inquisitorial function and can ask questions of witnesses in a way I cannot. It also has a power of recommendation, that I do not. Therefore, he said, I should not attempt to determine whether an Article 4 protective obligation arose. The fact that Article 4 was raised by him before the IRP but not properly dealt with in the IRP’s decision was enough to mean that the matter needed to be remitted back to the IRP.[57]The Academy’s skeleton argument contained submissions that(i) travel or movement is central to the definition of trafficking;(ii) child criminal exploitation and child sexual exploitation are not legal terms and are not synonymous with trafficking; and(iii) a risk of exploitation will not engage the Article 4 protection duty unless the individual is also at risk of being subjected to travel or movement for the purpose of that exploitation.[58]I was not attracted by the idea that this case should turn on whether any risks to the Claimant involved ‘travel or movement’. In any event, after questioning from the court, this issue, and the issue about the precise meaning of exploitation, fell away. Mr Persey accepted, in response to my questions, that not all forms of exploitation fell within the ambit of Article 4 and that when he referred to a risk of exploitation that should be taken as a risk of exploitation within the meaning of article 3(a) of the Palermo Protocol Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, General Assembly resolution 55/25 . He also clarified that the particular form of child criminal exploitation of which the Claimant was most at risk was being recruited into county lines drug trafficking. Mr Mitchell accepted, in response to my questions, that recruiting a child into country lines drug trafficking fell within the ambit of Article 4 ECHR.[59]Mr Mitchell argued that permanent exclusion did not expose the Claimant to a real and immediate risk of treatment contrary to Article 4 ECHR. The protection duty rests on the state, not the Academy alone, and the state has measures to protect children who have been permanently excluded, including a right to a place in another school. On the facts of this case the EHCP required that the Claimant be educated in a special school. He also submitted that generic evidence, that children excluded from school are at greater risk of abuse and exploitation, is not sufficient to trigger an Article 4 duty. He submitted that, in this case, the relevant matters were taken into account. The Claimant’s vulnerability was considered, as a matter of substance, in the principal’s decision letter. Finally, he submitted that, even if there was unlawfulness, it is highly likely that the outcome would have been the same. Permanent exclusion was the only reasonable outcome given the severity of the Claimant’s conduct and its impact on others. Discussion Introduction – the issue before me

Discussion

[60]The overall picture that I have, from the facts recorded above, is that the Academy went to great lengths to try to help the Claimant, to meet her needs and to keep her at their school. They did so for a significant period of time even though the Claimant’s behaviours appeared to be escalating and having a more and more detrimental impact on other pupils and their staff.[61]The Guidance required that permanent exclusion be a ‘last resort’. The Governing Body found that threshold was reached and the IRP upheld that decision. Ground 3 challenged the IRP’s decision as irrational. If that were the only ground of challenge before me, and there were no issue as to Article 4 ECHR, I would have no hesitation in dismissing this claim. It is clear, from the facts recorded above, that the Claimant’s behaviour was having a significant adverse impact on other pupils and on the Academy’s staff. She had been given many chances and a lot of additional support but her conduct was too disruptive to others for her to be at the Academy, or at the sister school or at AA. That is not to criticise the Claimant, for whom I have every sympathy, but to recognise that the evidence supports the decision of the Academy that they had reached that point of ‘last resort’, where all appropriate alternatives had been tried and permanent exclusion was necessary to protect the interests of other pupils and staff.[62]If no Article 4 ECHR issue had been raised, and this claim were just about the common law and the application of the Guidance and the ‘last resort’ test, I would have no hesitation in dismissing the claim.[63]However, this claim is not just about the common law, or consistency with published policy. Ground 3 is not the only ground on which the Claimant was granted permission. Ground 3 was not even the subject of submissions before me. The sole ground argued before me related to Article 4 ECHR, not the common law. That raises the question of what, in this context of permanent exclusion, Article 4 ECHR adds to the common law and to the Guidance. One of the reasons Mr Southey KC granted permission was, I infer, because of uncertainty as to that question.[64]In the time since Mr Southey KC granted permission, there has been caselaw clarifying what Article 4 ECHR adds in the context of school exclusion. On 8 November 2024 Fordham J handed down judgment in R (RWU) v A Governing Body of A Academy and London Borough of Southwark [2024] EWHC 2828 (Admin). This was a claim for a judicial review by a child (through their litigation friend), challenging the decision of a governing body to uphold their exclusion. There had been a hearing before an IRP in that case. The IRP had quashed the decision of the Governing Body not to reinstate RWU and remitted the matter back. On 24 June 2024 the Governing Body decided again not to reinstate RWU and he sought judicial review.

The judgments in RWU

[65]Fordham J’s judgment records several pieces of evidence, even before the Governing Body’s decision, which connected RWU with drugs and/or gang and/or county lines recruitment. Not all of this evidence was known to the Governing Body. However, the Governing Body did know the following: on 28 November 2023 RWU arrived at school seemingly under the influence of drugs; that same month, there were reports that RWU was with a group of students smoking cannabis (although no cannabis was found when the police arrived); on 18 January 2024 RWU did not arrive on time for school and his mother reported concerns that he was sneaking out of the house and was part of a group smoking weed; several members of staff reported that RWU smelt strongly of cannabis; RWU was found to have in his possession not just cannabis but £270 in cash, which he claimed to be holding for a friend.[66]In addition, there was other, even more powerful evidence connecting RWU with county lines activity, which was not known to the Governing Body: e.g. multiple admissions to A&E for knife wounds and injuries which professionals ‘linked to youth violence’ and convictions for possession of a knife. Fordham J ruled that that evidence was not legally relevant because judicial review ‘is not an exercise in hindsight’ (§53).[67]In paragraph 59 Fordham J began to address Article 4 ECHR, which was one of the four grounds before him. He said at (§59):
‘The issues are (i) whether the GDP failed to construe the PEX test compatibly with the Article 4 positive obligation, because (ii) there were clear indicators that the Claimant was at risk of harm from CCE. The Claimant’s case on this ground for judicial review came into clear focus in the written and oral submissions. There are three steps.’
[68]In §60 Fordham J set out the first step in the submissions of Ms Braganza KC, who represented RWU. Ms Braganza KC argued that the test for permanent exclusion in the Guidance (cited at §44 above), should be read as if there were a third criterion, i.e. ‘having regard to any protection duty owed to the pupil by reason of Article 4 ECHR’.[69]Fordham J said he was unable to accept this submission ‘in light of its reach’ (§61). He went on to say:
“61…I can agree that the PEX decision should only be taken “compatibly with a duty owed by the school to the pupil by reason of the Human Rights Act 1998”
. I would also agree that the GDP could not fail to reinstate if, by the time of its consideration or reconsideration of reinstatement, an HRA duty was owed by the school to the pupil. For his part, Mr Glenister creditably drew my attention to the Convention-compatible approach to policy guidance illustrated by R (South Gloucestershire) v South Gloucestershire Schools Appeal Panel [2001] EWHC 732 (Admin) at §49. Here, it would be a more direct route: a statutory duty under the HRA. If – and I emphasise if – there were a protection duty owed by the school, then it must not be contravened. In the same way, by reference to Article 2, the Academy could not lawfully order someone to leave a school building, knowing that they faced the imminent prospect of being murdered at the school gates. So, if the “appropriate measures” within the scope of a public authority’s powers involved an Article 4 duty on a school not to impose PEX, then that would become the statutory duty of the school. Ms Braganza KC is right to recognise that the Article 4 protection duty, where it is triggered, does not necessarily place such an obligation on a school. Where I could agree with her, on a case-specific basis, is that there may be cases where the same circumstances which would trigger an Article 4 protection duty have become an obviously relevant consideration, to which regard must be had by a school in making the PEX decision.’[70]I have underlined a particular sentence which Bean LJ later italicised and doubted.[71]The second step, in Ms Braganza KC’s submissions, related to the content of the Article 4 protective obligation. She submitted that it was to ‘take appropriate measures within the scope of the public authority’s powers to protect an identified individual in respect of whom they are aware, or ought to be aware, of circumstances giving rise to a credible suspicion of a real and immediate risk of having been, or being, trafficked or exploited.’ Fordham J asked whether these circumstances were ‘to be evaluated objectively by a judicial review court’. There was a dispute between the parties on that and Fordham J said:
‘I will proceed for now on the basis that the judicial review Court could look objectively at the trigger test. But I emphasise that this cannot be an exercise in hindsight.’
[72]The third step in Ms Braganza’s submissions was to apply the legal test to the facts of the case. Fordham J rejected her submission that the Article 4 protective duty had been triggered by the time of the impugned decision. He said it was only by an ‘impermissible exercise of hindsight – based on subsequent events – could it be concluded that an Article 4 positive protection duty arose’ at the relevant dates.[73]This judgment was appealed. The Court of Appeal refused permission to appeal but handed down a judgment which they gave permission to cite – [2025] EWCA Civ 147. In that judgment, at §29, Bean LJ said that the Court would proceed on the same basis as Fordham J – i.e. that it could look objectively at the trigger test. It was not suggested they should do otherwise. As a result, the critical issue in dispute was whether an Article 4 positive protection duty had been triggered at the relevant times.[74]RWU was given permission to admit fresh evidence on appeal. Bean LJ said this of that fresh evidence:
“The additional witness statements from Coram and BEO speak powerfully of the severe impact which a permanent exclusion has on the child concerned, depriving him of the protective environment of the school and making him potentially more vulnerable to exploitation by criminal gangs. For my part I would readily accept what they say. But these factors are inherent in the balancing exercise laid down in the various policy documents we were shown. Excluding the child may well be harmful to his life chances and increase his vulnerability, which is why permanent exclusion should be a last resort; but allowing him to remain at or return to the school may create a serious risk to the welfare of other pupils and the staff.”
[75]Bean LJ gave his reasons for refusing permission to appeal as follows: ‘43. There is now no dispute in this case that the trigger or threshold test for identifying a case of potential child criminal exploitation, derived from the decision of the Strasbourg court in Rantsev v Cyprus and Russia and applied by this court in the TDT case, is whether the state authorities are aware or ought to be aware of circumstances giving rise to a credible suspicion that the child concerned has been trafficked or exploited or that there is a real and immediate risk of his being trafficked. It is not sufficient to show, in the case of a school, a risk that permanent exclusion of a child will increase his vulnerability and the possibility that he might be drawn into further or more serious criminal activity.44. Fordham J examined the facts in detail and with great care. I have set out (at [31] above) his critical finding of fact that the Article 4 protective duty was not triggered in this case at the time of the decision under review. Even if the question for us were simply whether his finding was correct, I would hold that it was. …45. This makes it unnecessary to consider what the proper approach would have been if the credible suspicion threshold had been crossed by 24 June 2024. I would only add two comments. Firstly, I do not accept that, even if the credible suspicion threshold had been crossed, the school would have been automatically required to reinstate the Claimant. I do not, therefore, agree with the sentence I have italicised from paragraph 61 of the judgment below, which in any event seems inconsistent with other observations of the judge…”[76]In my judgment, the principles which emerge from RWU are as follows: i) If a school is aware or ought to be aware of circumstances giving rise to a credible suspicion that the child concerned has been trafficked or exploited (within the meaning of the Palermo Protocol) or that there is a real and immediate risk of that child being trafficked or so exploited, then that is a relevant factor for the school to take into account in making a decision about excluding a child permanently from the school. ii) The court in judicial review can decide for itself whether the school was or should have been aware of the circumstances set out at (i) above. However, the court should not apply hindsight and should only look at evidence which was, or should have been, known to the school. iii) It is not sufficient, to meet the test in (i), that permanent exclusion of a child will increase his vulnerability and the possibility that he might be drawn into further or more serious criminal activity. iv) Even if the school is aware of the circumstances set out at (i), it does not follow automatically that the school will be prevented from permanently excluding the child from the school.[77]On that last point, I find it difficult to conceive of a case where permanent exclusion, which is consistent with the Guidance and therefore genuinely a measure of last resort, would be prohibited by Article 4 ECHR. The Article 4 ECHR protective obligation is to take ‘appropriate steps’. It is difficult to see how it would be an ‘appropriate step’, under Article 4 ECHR, to keep a child in a school where that would ‘seriously harm the education or welfare of the pupils or staff in the school’ (the test under the Guidance). That is particularly so given that Article 4 ECHR is an obligation owed by the state, not just by an individual school and an individual school is entitled to expect the local authority to meet any obligations it has to provide alternative education for a child that has been permanently excluded.[78]That is not to say that the Article 4 ECHR protective obligation could never require a school to take any steps – it might, for example, require a school to report suspicions to the police or social services.[79]I accept, applying RWU, that if a school is considering the permanent exclusion of a child at imminent risk of treatment contrary to Article 4 ECHR, the school should have regard to that risk and the impact of permanent exclusion on that risk. However, I think the Guidance would probably require that anyway. Even if a school is just applying the Guidance, without having any regard to Article 4 ECHR, they should bear in mind the fact that permanent exclusion may make the child ‘more vulnerable to harm’, balance that with the need to ensure calm and safe environments, and devise strategies that take both of these aspects into account.[80]Mr Persey submitted that what Article 4 ECHR adds is that it ‘focuses the mind’ and ‘focuses the enquiry’ on measures that might prevent harm. It is not necessary for me to rule on that because, for the reasons set out below, I have concluded that no Article 4 ECHR protective obligation arose in this case.

Conclusions on this case

[81]I asked the parties whether I should decide for myself whether an Article 4 ECHR protective obligation arose at the time of the IRP’s decision. Mr Persey cautioned me against doing so on the grounds that that was a matter better decided by the IRP. Mr Mitchell was initially reluctant to say whether I should decide that issue for myself. Later, when he was making submissions on materiality, he appeared to accept that I would need to decide the issue for myself.[82]In my judgment, it is appropriate for me to decide whether an Article 4 protective obligation arose at the time of the decisions of the Academy, the Governing Body and/or IRP. That is the approach Fordham J and the Court of Appeal took in RWU (albeit in a challenge to a governing body’s decision rather than an IRP’s decision). It is also consistent with the approach this court usually takes to claims of breach of Convention rights (see discussion below).[83]In my judgment, there was not at any material time an Article 4 protective obligation in relation to the Claimant. There never was credible suspicion of a real and immediate risk that the Claimant would suffer treatment contrary to Article 4 ECHR. It became clear, during oral argument, that the relevant risk, in this case, was the risk of the Claimant being recruited to participate in ‘county lines’ drug trafficking. There was no evidence, before any of the decision-makers, that the Claimant had been recruited or was close to being recruited into ‘county lines’ drug trafficking.[84]The prospect of the Claimant being subjected to ‘child criminal exploitation’ was raised in the March 2022 child protection plan. This plan identified no direct evidence that the process of recruiting the Claimant into criminal activity had begun. I accept the submission of Mr Mitchell that, in this plan, the risk of the Claimant being drawn into criminal activity was connected more to her home situation than her educational difficulties. There was concern about the Claimant and her sister going missing from home. The greatest risk of the Claimant being drawn into criminal activity would arise if her ‘placement’ with her grandmother broke down. Fortunately, that has not happened. Both at the time of the IRP decision and at all other times, the grandmother has remained steadfast in her dedication to the Claimant and there was no indication of any risk of the placement breaking down. Indeed, the evidence of Dr X in July 2022 was that there had not been any major incidents of the Claimant going missing recently.[85]Mr Persey relied also on the evidence of the social worker. I have quoted the evidence from the social worker above, in his statement to the FtT. The evidence of the social worker was, in my judgment, consistent with the March 2022 protection plan. It did not identify any evidence that the Claimant had been exploited or groomed but identified that as a possible risk “due to peer associations and periodic episodes of being absent or missing.” The social worker said that reduced participation in education puts the Claimant ‘at an even greater risk of coming to harm in the community’. In my judgment, this evidence is similar to the fresh evidence which the Court of Appeal received in RWU. It was to the effect that permanent exclusion would increase the Claimant’s already existing vulnerabilities – in particular her vulnerability to being recruited into county lines drug trafficking. However, applying §43 of the Court of Appeal’s judgment in RWU, that kind of evidence is not enough to trigger an Article 4 protective obligation.[86]In this case, there was no evidence before any of the decision-makers that the Claimant was beginning to be involved in criminal activity. There was evidence (from the Claimant and/or her grandmother) that she was sexually assaulted by older male pupils at the Academy and at AA. There is no evidence before me that either of these alleged assaults had anything to do with ‘county lines’ recruitment.[87]This case can be contrasted with RWU. In that case, the school had some clues that the process of recruiting RWU into county lines drug trafficking had begun. Even so, Fordham J held that no Article 4 protective obligation arose at the material time. The risk, in this case, of treatment contrary to Article 4 ECHR was, in my judgment, more theoretical and less ‘real and immediate’ than in RWU.[88]As a result, in my judgment, applying the principles in RWU, this claim should fail. There was no Article 4 protective obligation on the Academy and hence no material error of law by the IRP.[89]In his oral submissions, Mr Persey seemed to suggest that I should go further than RWU and identify a new category of claim, where Article 4 ECHR might render the decision of an IRP unlawful. As I understood his submission, that new category would arise whenever there was a possibility or ‘prima facie’ case of an Article 4 ECHR protective obligation. If there was such a possibility or ‘prima facie’ case, the IRP was obliged to apply what Mr Persey called ‘the structured approach’ set out by Fordham J in §§59-66 of RWU. Any IRP which failed to do so would have ‘misapplied the law’ in relation to Article 4 ECHR.[90]For the following reasons, I reject that submission.[91]First, as I said to Mr Persey during the hearing, this argument seems to run contrary to the general approach that this court takes to allegations of breach of the ECHR. That approach is set out by the House of Lords in R (SB) v Governors of Denbigh High School [2007] 1 AC 100 and Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19; [2007] 1 WLR 1420. In each of those cases, the claimant had succeeded in the Court of Appeal. The Court of Appeal did not decide whether their ECHR rights had been violated. Instead, they found for the claimants on the grounds that the relevant decision maker had not applied the correct process of reasoning to potential human rights breaches. In each case, the House of Lords reversed the Court of Appeal. In the Denbigh High School case, Lord Bingham said:
‘the focus at Strasbourg is not and has never been on whether a challenged decision or action is the product of a defective decision making process, but on whether, in the case under consideration, the applicant’s Convention rights have been violated.’
As Lord Hoffmann put it in Miss Behavin’:
‘Either the refusal infringed the applicant’s Convention rights or it did not. If it did, no display of human rights learning by the Belfast City Council would have made the decision lawful. If it did not, it would not matter if the councillors had never heard of article 10 or the First Protocol.’
[92]Secondly, I do not think Mr Persey is right to suggest that Fordham J set out a ‘structured approach’ in §§59-66 of RWU. I accept the submission of Mr Mitchell that the three ‘steps’ identified by Fordham J in §§59-66 of RWU are steps in the argument of Ms Braganza KC (counsel for RWU) not steps which a decision-maker must follow in any case where Article 4 ECHR applies.[93]Mr Persey relied on paragraph 12 of Schedule 1 to the 2012 Regs and submitted that this imposed a duty on the IRP to consider and adjudicate on his Article 4 ECHR submissions. I do not think that paragraph does anything more than codify the obligations that any judicial or quasi-judicial decision-maker has.[94]In substance, what happened is as follows. The Headmaster and the Governing Body conscientiously considered the Claimant’s vulnerabilities and the harm it might do her if she were permanently excluded. In so doing, the Headmaster, who is not (I assume) a lawyer, did not have regard to ‘the Modern Slavery Act’. The Headmaster and Governing Body balanced the harm to the Claimant from permanent exclusion against the harm to other students and to teachers if the Claimant were not permanently excluded. They considered that, despite all their attempts to support the Claimant, the harm to others in not excluding her was simply too great and they had to fall back on the last resort, i.e. permanent exclusion.[95]The Claimant reviewed these decisions to the IRP. Two different lawyers represented the Claimant before the IRP. One drafted written submissions which did not raise Article 4 ECHR or modern slavery. At the oral hearing, however, a different lawyer appeared (Mr Persey) and he did raise Article 4 ECHR and/or modern slavery. The IRP appears not to have fully understood what point Mr Persey wanted to make about Article 4 ECHR. The IRP’s note of Mr Persey’s submission is quoted above. It makes little or no sense. I doubt Mr Persey would have said exactly what the IRP records him as having said – Mr Persey was, before me, a clear advocate of high quality. I expect something has been lost or misunderstood. The IRP did not squarely address Mr Persey’s oral submissions on Article 4 ECHR and permanent exclusion, possibly because they did not understand them and/or did not have a good note of exactly what he was saying. That is not to criticise the IRP – it is a forensic reality that points taken for the first time orally are not always understood or accurately noted. However, the IRP did consider the Claimant’s vulnerabilities, the impact of the decisions of the Academy on her and whether the Academy had done enough to try to support her within the school before taking the decision to exclude her permanently.[96]In my judgment, even if the IRP did fail to understand the new, oral point being taken by Mr Persey in relation to Article 4 ECHR, that is not a good reason for this court to quash the decision of the IRP or remit the matter. Whatever Mr Persey’s oral point on Article 4 ECHR was, it was not a good one because, for the reasons given above, there was no Article 4 ECHR positive obligation in this case. Besides, the IRP was entitled to find that the Academy had properly applied the Guidance and that, even having regard to the Claimant’s vulnerabilities, the last resort of permanent exclusion was necessary. That is what matters, not whether the Headmaster had, to borrow from Lord Hoffmann, ‘heard of’ the Modern Slavery Act 2015, or Article 4 ECHR. The parties should not be put to the expense and trouble of a new IRP hearing just because the IRP failed to note correctly a new point, made orally for the first time, that did not have force.[97]The first agreed issue is ‘did the IRP misapply the law?’ in relation to Article 4 ECHR. In my judgment, the answer is ‘No’ for the simple reason that there was no Article 4 law that needed to be applied on the facts of the case. For the reasons set out above, there was no Article 4 ECHR protective obligation and, in the absence of such an obligation, Article 4 ECHR was irrelevant.[98]To put it another way, the IRP made no material error of law. As a matter of substance, the IRP properly considered the factual matters they needed to consider, including the Claimant’s vulnerabilities, the harm that permanent exclusion might cause her and the Guidance. Neither Article 4 ECHR nor the Modern Slavery Act 2015 were mandatory relevant considerations on the facts of this case. Any failure on IRP’s part to address or apply the law under Article 4 ECHR was not material.[99]For the reasons given above, I dismiss this claim.

Cited in 1 later judgment